ECJ Advocate General delivers opinion on rail passenger rights

In his opinion delivered on June 7, 2012, ECJ Advocate General Jääskinen came to the conclusion that

Article 8(2) of, in conjunction with Annex II, Part II, to, Regulation (EC) No 1371/2007 on rail passengers’ rights and obligations is to be interpreted as meaning that information on main connecting services must include, in addition to scheduled departure times, notification of delays to or cancellations of those connecting services; and

Article 5 of, in conjunction with Annex II to, Directive 2001/14/EC on the allocation of railway infrastructure capacity and the levying of charges for the use of railway infrastructure is to be interpreted, as meaning that the infrastructure manager is under an obligation to make real‑time data on other railway undertakings’ trains available to railway undertakings in a non‑discriminatory manner, in so far as those trains constitute main connecting services.

The case concerns a dispute between the privately owned Austrian railway company "Westbahn" and the state owned "ÖBB" group. Westbahn was granted operational authorisation to provide passenger services on the Vienna West Station – Salzburg Central Station railway line. ÖBB‑Infrastruktur AG provides each individual railway undertaking with the real‑time data relating to their own trains, but not the real time data of other railway undertakings that operate on the Austrian railway network. However, real time data on all railway undertakings that operate on the network is displayed by ÖBB‑Infrastruktur AG on electronic notice boards at major stations.

Westbahn asked ÖBB‑Infrastruktur AG to make other railway undertakings’ real‑time data available to it, so that Westbahn would in future be able to inform its passengers of the current departure times of connecting services in the light of unexpected delays and cancellations. ÖBB‑Infrastruktur AG rejected that request and said that, in principle, it only discloses data pertaining to the railway undertaking making the request, and it advised Westbahn to reach an agreement with the various railway undertakings concerned, by which those undertakings would agree to the disclosure of their data.

The Advocate General argues that information about train delays and cancellations is not confidential in nature, either with respect to the undertakings concerned or passengers. On the contrary, its accessibility is a condition for a well functioning rail transportation system, based on the plurality of service providers, and the interoperability of services and networks. ÖBB‑Infrastruktur AG displays it on screens in stations. Information held by an undertaking on train delays and cancellation does not attract data protection because it is not personal information. The EU legislature has drawn a distinction, in Article 8 of Regulation No 1371/2007 between the information passengers are entitled to before a journey commences and the information to which they are entitled during a voyage. If the content of the information required before a journey were not interpreted as being static, and the information during the journey as dynamic, the distinction drawn by the EU legislature between pre‑journey information and during‑journey information would make no sense. The information that a passenger needs before and during a journey are not generally the same.

Real time data is ‘required’ by Westbahn in order to comply with its obligations under Regulation No 1371/2007, and to provide a competitive service. Further, both the position of ÖBB‑Personenverkehr AG, as market leader in the provision of railway services, and its relationship with ÖBB‑Infrastruktur AG, as a member of the same group of companies, is relevant to the assessment of the information that is ‘required’ by Westbahn ‘to implement or operate’ a railway service. In practical terms, this plainly includes real time data, so that Westbahn can compete effectively on the market.